Copyright in artistic works

Question 1

What order (7 things) should you address the problem?

Answer 1

1. Is it original
2. Does it fall within s1(1)(a) as defined by S4
3. Is it permanent and is the author qualified
4. Is the author the owner
5. Is it within the protection period
6. Infringement
7. Defences

Question 2

3 cases on originality

Answer 2

Ladbroke v William Hill - originality goes to source not inventiveness
University of London Press: For originality there need only be minimal skill, labour and judgment
Interlego: revision / update of a work must be more than minimal to start the clock again

Question 3

What section of the CDPA explains “artistic work”

Answer 3

s4

Question 4

3 cases explaining graphic work

Answer 4

British Northrop: Anything beyond a single line
Wham-O: Engravings on a frisbee
Hi Tech Autoparts: etchings on a carmat

Question 5

When is a photo of an object a copyright work

Answer 5

When the lighting, angle, positioning etc are skillful: Antiquesportfolio.com, Red Bus Case

Question 6

What is a collage?

Answer 6

Two or more things stuck together with adhesive: Creation Records

Question 7

What is a sculpture (2 cases)

Answer 7

a 3D work made by the artists hand: metix

Must be intended to be enjoyed for aesthetic purposes alone: Lucasfilm

Question 8

Minimum threshold for architecture

Answer 8

Any fixed structure

Can be dull: Hay v Sloan (suburban housing)

Question 9

What is a work of artistic craftsmanship

Answer 9

1. Eye appeal and 2. craftsmanship (can be a team): Vermaat v Boncrest

Question 10

How is eye appeal judged (2 cases)

Answer 10

Intention of the maker: Hensher v Restawile

Not if it is functional: Merlet v Mothercare

Question 11

How is craftsmanship judged (2 cases)

Answer 11

Skill and pride in work - Vermaat v Boncrest

Not made by machine - Guild v Eskander

Question 12

Obiter comment in Metix about sculpture

Answer 12

An ice sculpture would be protected by copyright

Question 13

What order do you address qualification copyright protection

Answer 13

s153 (1) AUTHOR is domiciled / resident / citizen of a CONVENTION country (Art 2(6) Berne Convention at material time
OR
first PUBLISHED in the UK

Question 14

What is the material time?

Answer 14

s154(4)
UNpublished: time of creation
PUBLISHED: time of publication

Question 15

What is publication

Answer 15

Issue of copies, availability online, NOT exhibition

Question 16

Which section deal with ownership and what does it say?

Answer 16

S11 - Author is the owner
UNLESS
made in course of employment (eg Beloff v Pressdram)

Question 17

What section deals with joint ownership and what does it say

Answer 17

S10 - Contributions must not be distinct. BUT see Beckingham v Hodgens - young at heart riff

Question 18

What is the protection period for copyright (and the sections)

Answer 18

S12(2) Life + 70

S52(2) Reduced to 25 years if exploited commercially

Question 19

Where are the infringing acts listed

Answer 19

S16

Question 20

What is the test for infringement of copyright

Answer 20

Substantial taking. Designers Guild Test:
1. Identify the features of the Ds design which are alleged to be copied
2. If there is similarity plus opportunity for copying the burden is on D to show no copying
3. Is the copied element a substantial element of the source work (not Ds).
Test is impressionistic, goes to quality not quantity when considering importance to source work.

Question 21

Two things to remember about the Designers Guild test

Answer 21

Do not break the copied work into its constituent parts: ladbroke v William Hill
Red Bus: look to overall composition, distinctive elements

Question 22

Where does it say that copying can be direct or indirect?

Answer 22

s16(3)(b)

Question 23

An example of indirect copying

Answer 23

CD cover based on poster based on photo: Gabrin v Universal

Question 24

An example of subconscious copying

Answer 24

ABCKO v Harrisongs

Question 25

Is there a parody exception

Answer 25

No: Schweppes v Wellington

Question 26

What section says that a 3D copy of a 2D work infringes and vice versa

Answer 26

17(3)

Question 27

What case says there is no clearcut rule for the dividing line between copying of an idea or an expression

Answer 27

Baigent & Lee

Question 28

Where is the provision on authorising infringing ats and what is the definition

Answer 28

S16(2). Authorise = sanction, countenance or approve: Moorhouse

Question 29

Which sections apply to commercial dealings with infringing copies

Answer 29

S22&23 - and see Pensher - infringing doors in a block of flats = secondary infringement.

Question 30

What is the main defence to infringement of a design

Answer 30

s51 - making something to the spec of a design document, BUT doesn’t count for works of art.

Question 31

When was what was copied a mere idea

Answer 31

Norowzian

Question 32

When was a design not permanent

Answer 32

Hensher

Question 33

Independent creation was a defence

Answer 33

Kleeneze

Question 34

What section says that copyright prevails over a design right where both exist

Answer 34

s236